Opinion
No. 1-13-1151
12-12-2014
MAYER ZAYAN, Plaintiff-Appellant, v. ALEX BONDARCHUK, Defendant .
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County No. 08 L 3496 Honorable James E. Snyder, Judge Presiding. JUSTICE REYES delivered the judgment of the court.
Justices McBride and Gordon concurred in the judgment.
ORDER
¶ 1 Held: The circuit court's denial of plaintiff's section 2-1401 petition to vacate the dismissal of his complaint for want of prosecution is affirmed as plaintiff failed to exercise due diligence in monitoring his case. ¶ 2 Plaintiff Mayer Zayan appeals from the circuit court of Cook County's order denying his petition to vacate brought pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)). On appeal, plaintiff contends he was not properly notified of a mandatory arbitration hearing or the dismissal of his complaint for want of prosecution, and therefore, the circuit court erred in denying his section 2-1401 petition. For the following reasons, we affirm.
¶ 3 BACKGROUND
¶ 4 The underlying intentional tort action was brought following an incident on December 6, 2007, where defendant Alex Bondarchuk allegedly grabbed plaintiff and began beating him with his fists until plaintiff fell to the ground. At that point, defendant started kicking plaintiff until a third party intervened. Defendant fled the scene and plaintiff was taken to the hospital where he was treated for a fractured jaw and a concussion. Defendant was criminally convicted of battery and sentenced on February 13, 2009. ¶ 5 On March 31, 2008, plaintiff filed in the law division of the circuit court of Cook County a two-count civil complaint for assault and battery against defendant. After being served with the complaint, defendant filed his answer, affirmative defenses, and a jury demand. On November 10, 2010, plaintiff's original counsel withdrew and the law firm of Lunz & Jersey was substituted as counsel for plaintiff. The clerk of the circuit court never recorded this change in the docket. Thereafter, Lunz & Jersey appeared in court on December 8, 2010, February 9, 2011, March 4, 2011, and March 25, 2011. The parties entered an agreed order on March 25, 2011, to transfer the case to the municipal division of the circuit court. The circuit court generated a postcard notification of a status hearing on May 16, 2011, and the March 25, 2011, order was placed in the court file. The agreed order of March 25, 2011, did not indicate defendant should notify plaintiff or send him a copy of the order. ¶ 6 On May 16, 2011, counsel for plaintiff did not appear at the status hearing. The circuit court then set the case for a mandatory arbitration hearing on August 2, 2011. On May 18, 2011, the circuit court generated a postcard notification of the mandatory arbitration hearing, but the written order was not placed in the file. On August 2, 2011, defendant and his counsel appeared for arbitration, but plaintiff and his counsel were not present. The arbitrators found for defendant because plaintiff did not appear. Defendant did not send plaintiff a copy of the order or otherwise notify him. Two days later, the clerk mailed a notice of the award to defendant and plaintiff's original counsel. On September 27, 2011, the circuit court dismissed the case for want of prosecution. The record does not indicate whether defendant requested the dismissal. ¶ 7 On January 16, 2013, plaintiff filed a petition to vacate pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2012)). Plaintiff alleged he did not receive any court notices after his case was transferred to the municipal division on March 25, 2011. As a result, plaintiff did not receive the notice of the mandatory arbitration hearing, the entry of the award, or the order dismissing his case for want of prosecution. Plaintiff argued he did not receive the notices because the clerk of the circuit court failed to register Lunz & Jersey as his attorneys of record. Plaintiff also argued defendant's counsel should have notified him of the mandatory arbitration hearing and the subsequent award. ¶ 8 On March 13, 2013, the circuit court issued an oral ruling denying plaintiff's petition to vacate. The circuit court stated it did not "doubt [plaintiff] didn't receive notice" but noted "[plaintiff] made no reference to any affirmative actions on [his] part to keep track of the litigation" from March 28, 2011, through January 14, 2013, and "haven't indicated *** any diligence in the prosecution of the claim other than not receiving notice." On April 3, 2013, plaintiff timely filed this notice of appeal.
It is unclear from the record when this postcard notification was generated.
¶ 9 ANALYSIS
¶ 10 On appeal, plaintiff contends the circuit court erred in denying his section 2-1401 petition. Specifically, plaintiff claims he demonstrated he was diligent in following the original action because, through no fault of his own, he was not notified of the court proceedings after March 25, 2011. In the alternative, plaintiff asserts that the circuit court should have invoked its equitable powers to grant his section 2-1401 petition. To review these issues, however, we must first determine which standard of review applies.
¶ 11 Standard of Review
¶ 12 The parties disagree as to which standard of review should be applied in this matter. Relying on Royal Extrusions Ltd. v. Continental Window and Glass Corporation, 349 Ill. App. 3d 642, 646 (2004), plaintiff argues the standard of review is de novo, as no evidentiary hearing on the petition was conducted. In contrast, defendant argues the matter should be reviewed for an abuse of discretion. See Smith v. Airoom, Inc., 114 Ill. 2d 209, 221 (1986) (reviewing the trial court's decision whether to grant a section 2-1401 petition for abuse of discretion). An abuse of discretion occurs when no reasonable person would take the view adopted by the trial court. Wells v. St. Bernard Hospital, 2013 IL App (1st) 113512, ¶ 31. We agree. ¶ 13 A section 2-1401 analysis is two tiered: "(1) the issue of a meritorious defense [or meritorious cause of action] is a question of law and subject to de novo review; and (2) if a meritorious defense [or cause of action] exists, then the issue of due diligence is subject to abuse of discretion review." Cavalry Portfolio Services v. Rocha, 2012 IL App (1st) 111690, ¶ 10. The circuit court denied the section 2-1401 petition based on plaintiff's lack of due diligence in monitoring his case, therefore, we review the matter for an abuse of discretion standard. See id.
When the central facts of a section 2-1401 petition are disputed, an evidentiary hearing must be held. Smith v. Cole, 256 Ill. App. 3d 806, 810 (1993). However, "[w]hen a party to a section 2-1401 petition participates in a hearing based solely upon the pleadings, affidavits, and arguments of counsel without requesting an evidentiary hearing, we deem the right to such a hearing waived." Cole, 256 Ill. App. 3d at 810. The record here does not indicate whether either party requested an evidentiary hearing, and the trial court did not conduct an evidentiary hearing on plaintiff's 2-1401 petition. As the central facts alleged in the petition were not at issue, we find that an evidentiary hearing was not required. See id.
¶ 14 The Section 2-1401 Petition
¶ 15 We now turn to consider plaintiff's contention on appeal that the trial court erred in denying his section 2-1401 petition. To be entitled to relief pursuant to section 2-1401, the petitioner must set forth specific factual allegations supporting: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief. Airoom, 114 Ill. 2d at 220-21. A petitioner must file a petition no later than two years after the entry of the order or judgment. 735 ILCS 5/2-1401(c) (West 2012). The purpose of a section 2-1401 petition is to bring facts to the attention of the circuit court which, if known at the time of judgment, would have precluded its entry. Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 94 (2006). The petitioner has the burden of establishing these elements by a preponderance of the evidence. Id. at 95. ¶ 16 To establish due diligence in presenting the original claim, a petitioner must have a reasonable excuse for its failure to act within the appropriate time. Airoom, 114 Ill. 2d at 222. Specifically, plaintiff must demonstrate that his failure to prosecute the suit "was the result of excusable mistake and that, under the circumstances, [he] acted reasonably and without negligence." O'Malley v. Powell, 202 Ill. App. 3d 529, 534 (1990). In determining the reasonableness of the excuse offered by the petitioner, all of the circumstances upon entry of the judgment must be considered. Ameritech Publishing of Illinois, Inc. v. Hadyeh, 362 Ill. App. 3d 56, 60 (2005). Section 2-1401 does not afford litigants a remedy that relieves them of the consequences of their own mistakes or negligence or the mistakes or negligence of their lawyers. Airoom, 114 Ill. 2d at 222. ¶ 17 The circuit court has the discretion to grant or deny a section 2-1401 petition "depending upon the facts and equities presented." Id. at 221. In some cases, Illinois courts relaxed or even excused the due diligence requirements where necessary to prevent the unjust entry of default judgments and to effect substantial justice. See id. at 225 ("[W]here justice and good conscience may require it a default judgment may be vacated even though the requirement of due diligence has not been satisfied."); Gonzalez v. Profile Sanding Equipment, Inc., 333 Ill. App. 3d 680, 686 (2002). The due diligence standard may be relaxed where there is unconscionable conduct by the opposing party (Airoom, 114 Ill. 2d at 226), where there is a lack of cooperation between plaintiff's counsel and substitute counsel (Yates v. Barnaby's of Northbrook, 218 Ill. App. 3d 128 (1991)), or to prevent manifest unjustness (Gonzalez, 333 Ill. App. 3d at 689). ¶ 18 However, in Yates, the appellate court affirmed a trial court's decision that found that justice and fairness required a vacation of a dismissal order, even though the due diligence requirement was not met based on evidence of lack of cooperation between plaintiff's original and substitute counsel and negligence on their part. Yates, 218 Ill. App. 3d at 130. In the case at bar, the plaintiff is asking us to reverse the trial court and find that the trial court abused its discretion when it found that the failure of the original lawyer not to send a copy of the arbitration award to the lawyer who substituted was not enough to disregard the lack of diligence that the substituted lawyer exhibited in failing to follow this case. Unlike in Yates, the trial court here did not find that fairness mandated a vacation of the dismissal order. See id. In the case at bar, not only did the substituted lawyer fail to follow the case to arbitration, he failed to appear at arbitration, and then failed to appear before the trial court on the date the case was dismissed for want of prosecution. Section 2-1401, which governs the relief from a default judgment, does not afford a litigant a remedy whereby he may be relieved of the consequences of his lawyer's own mistake or negligence. 735 ILCS 5/2-1401 (West 2010). The failure to notify a party of the entry of an arbitration award, a default judgment, or a dismissal does not make that order void. See Watts v. Medusa Portland Cement Co., 132 Ill. App. 2d 227, 230 (1971) (finding that the failure to notify the plaintiff that a dismissal for want of prosecution order had been entered did not make the order void). It is a factor which may, under a particular circumstance, make the order more vulnerable to a section 2-1401 petition. Elfman v. Evanston Bus Co., 27 Ill. 2d 609, 614 (1963) (noting that the failure to notify the defendant that damages were assessed, although not controlling, "further cast[] a cloud on the proceedings"). However, it does not excuse a party from the burden of showing the exercise of due diligence. Johnson-Olson Floor Coverings, Inc. v. Branthaver, 94 Ill. App. 2d 394, 400 (1968). As our supreme court stated in Airoom, unless the conduct of the opposing lawyer was used to gain an unconstitutional advantage or included fraud or fundamental unfairness, equitable principles do not require a judgment to be vacated. Airoom, 114 Ill. 2d at 228-29. The trial court found that the conduct that caused this dismissal was that of plaintiff's lawyer and we cannot say that the trial court abused its discretion when it denied plaintiff's section 2-1401 petition. Wells, 2013 IL App (1st) 113512, ¶ 31. ¶ 19 As the circuit court denied plaintiff's section 2-1401 petition based on his lack of diligence in monitoring his case, we need not consider whether his petition alleges sufficient facts establishing a meritorious claim, or whether plaintiff was diligent in filing the petition. Accordingly, we turn to consider plaintiff's arguments on appeal.
¶ 20 Plaintiff's Due Diligence in Presenting the Original Claim
¶ 21 We first consider whether plaintiff here exercised due diligence in presenting his claim to the circuit court in the original action. The record establishes plaintiff's counsel was aware of the pending proceedings. In fact, plaintiff's counsel made four separate appearances on plaintiff's behalf after his original counsel withdrew. Plaintiff's new counsel, Lunz & Jersey, was present in court on March 25, 2011, when the matter was transferred to the municipal division. After the transfer, plaintiff and his new counsel were aware that the matter remained pending, but failed to inquire about its status for six months before the dismissal for want of prosecution. In addition, plaintiff's counsel did not check the status of this case through the various means available, including the clerk of the circuit court's website or the Chicago Daily Law Bulletin. These actions are contrary to a litigant's duty to follow the case. See Esczuk v. Chicago Transit Authority, 39 Ill. 2d 464, 467-68 (1968) (denying relief under a previous version of section 2-1401, where there was "no allegation that notice was not published in the Chicago Daily Law Bulletin or that post-card notices were not sent," and there was no evidence of "fraud, mistake or fundamental unfairness."). Parties are "under the responsibility to follow their own law suit" even if they rely on counsel. Illinois Marine Towing Corporation v. Black, 74 Ill. App. 3d 909, 913 (1979); see Hadyeh, 362 Ill. App. 3d at 60 (a litigant is ordinarily bound by the negligence of his legal counsel). Plaintiff failed to establish he exercised due diligence in presenting his original action by a preponderance of the evidence, therefore, we find the circuit court did not abuse its discretion in denying his section 2-1401 petition. See Esczuk, 39 Ill. 2d at 467-68.
We need not address the issue of due diligence in filing the section 2-1401 petition because the trial court denied the petition based on the lack of due diligence in prosecuting the original claim.
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¶ 22 Equitable Powers
¶ 23 In the alternative, plaintiff asserts the circuit court should have invoked its equitable powers, as justice and fairness require, to grant his section 2-1401 petition. Plaintiff argues defendant's failure to notify him of the mandatory arbitration, the entry of the award, and the ex parte order dismissing plaintiff's case for want of prosecution are sufficient reasons for the circuit court to invoke its equitable powers. We disagree. ¶ 24 Defendant was under no responsibility to provide plaintiff with notice, and in the absence of any indications of fraud or deception on the part of defendant in obtaining the ex parte judgment, the diligence standard will not be relaxed. Stallworth v. Thomas, 83 Ill. App. 3d 747, 752 (1980); see Airoom, 114 Ill. 2d at 228-29 (absent evidence which demonstrates an opposing party was deceptive in obtaining the default judgment, a party's silence does not require the judgment to be vacated). As previously discussed, plaintiff has a duty to follow his own case. See Black, 74 Ill. App. 3d at 913. Therefore, despite the lack of notice, plaintiff was still responsible for acting reasonably in pursuing his claims. Airoom, 114 Ill. 2d at 222. Plaintiff has not provided any evidence to establish that his reasons for failing to follow his case were excusable or were through no fault of his own, nor has he provided any facts to demonstrate fraud or unconscionable behavior on the part of the circuit court or defendant. See Stallworth 83 Ill. App. 3d at 752. Rather, the record clearly discloses that the dismissal for want of prosecution resulted from plaintiff's failure to follow his case. Id. ¶ 25 Plaintiff mistakenly relies on Windmon v. Banks, 31 Ill. App. 3d 870 (1975), for the proposition that the circuit court's dismissal should be vacated where: (1) notices were forwarded to an attorney who was not counsel of record for the plaintiff; and (2) the plaintiff personally attended her deposition before she stopped receiving notices, as this indicated she was not acting with indifference or with disregard of the prosecution of her case. Windmon, however, is distinguishable because there, the plaintiff alleged she believed she was being represented by an attorney, but the attorney denied an agreement existed. Id. at 875. In addition, the attorney was unable to notify the plaintiff of the court proceedings as the attorney was in and out of the hospital for several months. Id. at 872, 875. The reviewing court vacated the circuit court's dismissal because there was an "excusable misunderstanding" regarding who was representing the plaintiff, and notice to the attorney was negated because he was unable to contact the plaintiff for several months. Id. at 875-76. In the instant case, these mitigating factors do not exist. There was no misunderstanding regarding plaintiff's representation nor does plaintiff's counsel argue his ability to follow his case was impaired. See id. at 875-76. ¶ 26 Based on the record it is clear that, "[plaintiff]'s dilemma is the result of [his] own negligence and indifference to or disregard of the circuit court's process." Prenam No. 2, Inc. v. Village of Schiller Park, 367 Ill. App. 3d 62, 66 (2006). Accordingly, as plaintiff has failed to meet his burden that he exercised due diligence in bringing this matter to the attention of the circuit court, we affirm the trial court's denial of plaintiff's section 2-1401 petition. See Hadyeh, 362 Ill. App. 3d at 61.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 29 Affirmed.